Preview
FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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AJX MORTGAGE TRUST II, A DELAWARE TRUST, Index No. 135504/2018
WILMINGTON SAVINGS FUND SOCIETY, FSB,
TRUSTEE, AFFIRMATION OF
REGULARITY
Plaintiff
-against- Mortgaged Premises:
84 Wolcott Avenue
ROBERT M. CIMMINO AKA ROBERT CIMMINO; Staten Island, NY 10312
CATHY CIMMINO AKA CATHY A. CIMMINO;
BOARD OF DIRECTORS OF WOLCOTT AVENUE Block: 5658
HOMEOWNERS ASSOCIATION INC.; WOLCOTT Lot: 169
AVENUE HOA INC.; NEW YORK CITY
DEPARTMENT OF FINANCE PARKING
VIOLATIONS BUREAU; PAUL CARMEL,
Defendants
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I, Andrew Buonincontri, Esq., an attorney duly admitted to practice law in the State of
New York, hereby affirm pursuant to CPLR §2106 that:
1. I am an associate of FRIEDMAN VARTOLO LLP, the attorneys of record for
the named Plaintiff, AJX MORTGAGE TRUST II, A DELAWARE TRUST, WILMINGTON
SAVINGS FUND SOCIETY, FSB, TRUSTEE (hereinafter “Plaintiff”) in this action and I am
fully familiar with all of the proceedings herein.
2. As of the date of this filing, the Mortgage to be foreclosed, infra, is being serviced
by Gregory Funding, LLC, (866) 712-5698. This information is being provided in compliance
with CPLR 1351, as amended, and the Borrower will be notified of any future servicer change in
a separate notice pursuant to part 202 Uniform Civil Rules 202.12-a(b)(1).
3. This action has been brought to foreclose a Mortgage executed by Robert M.
Cimmino and Cathy Cimmino (hereinafter “Mortgagor(s)”) to Wall Street Mortgage Bankers,
LTD on October 20, 2006 on real property known as 84 Wolcott Avenue, Staten Island, NY
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10312 (hereinafter “Mortgaged Premises”), made in the original amount of $245,000.00,
recorded in the Richmond County Clerk’s Office on November 9, 2006 in Land Document
161146. A true and correct copy of the Mortgage is attached hereto as Exhibit A.
4. On March 24, 2009, Cathy and Robert Cimmino and America’s Servicing
Company amended and supplemented the Mortgage by execution of a loan modification
agreement, which capitalized all arrears to form a total unpaid principal balance of $255,092.32
(hereinafter “First Loan Modification Agreement”). The First Loan Modification Agreement
amended the interest rate of the Mortgage such that interest would accrue at 5.000% per annum
from June 1, 2009 until the modified maturity date, November 1, 2036. A true and correct copy
of the aforementioned First Loan Modification Agreement is attached as Exhibit B.
5. On January 21, 2011, Robert M. Cimmino and Cathy Cimmino and Wells Fargo
Bank, N.A., D/B/A America’s Servicing Company amended and supplemented the Mortgage by
execution of a loan modification agreement, which capitalized all arrears to form a total unpaid
principal balance of $273,902.80 (hereinafter “Second Loan Modification Agreement”). The
Second Loan Modification Agreement amended the interest rate of the Mortgage such that
interest would accrue at 4.000% per annum from April 1, 2011 until the modified maturity date,
March 1, 2051. A true and correct copy of the aforementioned Second Loan Modification
Agreement is attached as Exhibit C.
6. On September 17, 2012, Cathy Cimmino and Robert Cimmino and Specialized
Loan Servicing LLC amended and supplemented the Mortgage by execution of a loan
modification agreement, which capitalized all arrears to form a total unpaid principal balance of
$283,826.42 (hereinafter “Third Loan Modification Agreement”). The Third Loan Modification
Agreement amended the interest rate of the Mortgage such that interest would accrue at 4.500%
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per annum from October 1, 2012 until the modified maturity date, March 1, 2051. A true and
correct copy of the aforementioned Third Loan Modification Agreement is attached as Exhibit
D.
7. On August 21, 2013, Cathy Cimmino and Robert Cimmino and Specialized Loan
Servicing LLC amended and supplemented the Mortgage by execution of a loan modification
agreement, which capitalized all arrears to form a total unpaid principal balance of $300,433.70
(hereinafter “Fourth Loan Modification Agreement”). The Fourth Loan Modification Agreement
amended the interest rate of the Mortgage such that interest would accrue at 4.000% per annum
from September 1, 2013 until the modified maturity date, March 1, 2051. A true and correct copy
of the aforementioned Fourth Loan Modification Agreement is attached as Exhibit E.
8. Thereafter, the Mortgage was assigned as provided for below:
ASSIGNMENT OF MORTGAGE:
Assignor: Wall Street Mortgage Bankers, LTD
Assignee: New Century Mortgage Corporation
Dated: April 21, 2014
Recorded: June 12, 2014
Land Doc: 525397
ASSIGNMENT OF MORTGAGE:
Assignor: New Century Mortgage Corporation
Assignee: FV-I, Inc. in Trust for Morgan Stanley Mortgage Capital Holdings, LLC
Dated: April 21, 2014
Recorded: June 12, 2014
Land Doc: 525398
ASSIGNMENT OF MORTGAGE:
Assignor: FV-I, Inc., in Trust for Morgan Stanley Mortgage Capital Holdings, LLC
Assignee: Wells Fargo Bank, N.A. D/B/A America`s Servicing Company
Dated: November 23, 2015
Recorded: January 21, 2016
Land Doc: 591671
ASSIGNMENT OF MORTGAGE:
Assignor: Wells Fargo Bank, N.A. D/B/A America`s Servicing Company
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Assignee: FV-I, Inc., in Trust for Morgan Stanley Mortgage Capital Holdings, LLC
Dated: December 16, 2015
Recorded: February 26, 2016
Land Doc: 595224
True and correct copies of the aforementioned assignments of Mortgage are attached hereto as
Exhibit F.
9. On August 21, 2013, Cathy Cimmino and Robert Cimmino and Specialized Loan
Servicing LLC amended and supplemented the Mortgage by execution of a loan modification
agreement, which capitalized all arrears to form a total unpaid principal balance of $334,690.01
(hereinafter “Fifth Loan Modification Agreement”). The Fifth Loan Modification Agreement
amended the interest rate of the Mortgage such that interest would accrue at 4.500% per annum
from May 1, 2017 until the modified maturity date, April 1, 2057. A true and correct copy of the
aforementioned Fifth Loan Modification Agreement is attached as Exhibit G.
10. Thereafter, the Mortgage was assigned as provided for below:
ASSIGNMENT OF MORTGAGE:
Assignor: FV-I, Inc., in Trust for Morgan Stanley Mortgage Capital Holdings, LLC
Assignee: AJX Mortgage Trust II, a Delaware Trust, Wilmington Savings Fund Society, FSB,
Trustee
Dated: November 13, 2017
Recorded: March 6, 2018
Land Doc: 690652
A True and correct copy of the aforementioned assignment of Mortgage is attached hereto as
Exhibit H.
11. An Order has been made and entered with the Richmond County Clerk's office on
March 31, 2022, referring the matter to Graig C. Martin, Esq. as Referee, to ascertain and
compute the amount due on the Note and the Mortgage which are the subject of this action,
which order provides that upon filing the Referee’s Report, Plaintiff may have Judgment for the
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relief demanded in the Complaint. A copy of the Notice of Entry for the Order is attached hereto
as Exhibit I.
12. The Referee’s Oath and Report dated August 1, 2022 and filed in the Richmond
County Clerk's Office on August 3, 2022 shows the amount of principal, interest and other
charges accruing under the Note and Mortgage then due Plaintiff to be the sum of $403,986.71
as of June 15, 2022, plus a per diem interest for every day thereafter. A copy of the Referee's
Oath and Report is attached hereto as Exhibit J.
13. Department of Manpower Data Center searches were conducted to determine the
current military status of the Borrowers, Cathy Cimmino and Robert Cimmino in support of the
pending application for Judgment of Foreclosure and Sale. The information generated from the
searches indicated that the aforementioned Borrowers are not in active duty in the military
service of either the United States or an ally. The Department of Manpower Data Center search
of Cathy Cimmino and Robert Cimmino were conducted on September 13, 2022. However, no
search could be conducted for those defendants named as subordinate lienholder or as John Doe
because Plaintiff lacked the necessary information to conduct such search and they are not
otherwise entitled to the protection offered by the federal and state Soldier’s and Sailors Civil
Relief Acts for the purpose of this foreclosure action. Copies of said searches are attached hereto
as Exhibit K.
14. Pursuant to L. 2013, c. 305, a Certificate of Merit was filed and served, together
with copies of relevant financial documents, with the summons and complaint and notice of
pendency. A copy of the Certificate of Merit is attached here to as Exhibit L.
15. A successive Notice of Pendency was filed on May 26, 2021. A copy of the
Successive Notice of Pendency is annexed hereto as Exhibit M.
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16. All the Defendant(s) are of suitable age and are of sound mind, and are not
incompetents or absentees, nor are they in the military.
17. All Defendant(s) have been duly served with the summons and complaint in this
action as shown by the affidavits of service on file in this action or have appeared through
counsel. Copies of the aforementioned affidavits of service, or appearances by counsel, if
applicable, are attached hereto as Exhibit N.
18. All of the Defendants who require notice of this Application have been served.
19. All of the proceedings herein have been regular and in conformity with the rules
and practice of this Court.
20. No previous application has been made for the relief sought in the Judgment of
Foreclosure and sale submitted herewith.
WHEREFORE, it is prayed that the Judgment of Foreclosure and Sale submitted
herewith be signed, the Referee's Oath and Report be confirmed, and the Plaintiff be granted the
relief sought in the Complaint, including an additional allowance pursuant to Section 8303 of the
Civil Practice Law and Rules, if applicable, and for any further relief this Court may deem just
and proper.
Dated: September 13, 2022
New York, New York
/s/ Andrew Buonincontri
Andrew Buonincontri, Esq.
FRIEDMAN VARTOLO LLP
Attorneys for Plaintiff
1325 Franklin Avenue, Suite 160
Garden City, New York 11530
T: (212) 471-5100
Firm File No. 181070-1
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WORD COUNT CERTIFICATION
Andrew Buonincontri, Esq., an attorney admitted to practice in the courts of New York
State, hereby affirms under penalty of perjury that:
I am an associate of the firm of FRIEDMAN VARTOLO LLP the attorneys of record
for the Plaintiff in the within action.
This computer generated ATTORNEY AFFIRMATION was prepared using a
proportionally spaced typeface. The total number of words, inclusive of caption, point headings
and footnotes, if any, and exclusive of exhibit, word count certification, or any authorized
addendum is 1593.
Dated: September 13, 2022
New York, New York
/s/ Andrew Buonincontri
Andrew Buonincontri, Esq.
FRIEDMAN VARTOLO LLP
Attorneys for Plaintiff
1325 Franklin Avenue, Suite 160
Garden City, New York 11530
T: (212) 471-5100
Firm File No. 181070-1
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Preview
FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------------------------------------------------------------------X AJX MORTGAGE TRUST II, A DELAWARE TRUST, Index No. 135504/2018 WILMINGTON SAVINGS FUND SOCIETY, FSB, TRUSTEE, AFFIRMATION OF REGULARITY Plaintiff -against- Mortgaged Premises: 84 Wolcott Avenue ROBERT M. CIMMINO AKA ROBERT CIMMINO; Staten Island, NY 10312 CATHY CIMMINO AKA CATHY A. CIMMINO; BOARD OF DIRECTORS OF WOLCOTT AVENUE Block: 5658 HOMEOWNERS ASSOCIATION INC.; WOLCOTT Lot: 169 AVENUE HOA INC.; NEW YORK CITY DEPARTMENT OF FINANCE PARKING VIOLATIONS BUREAU; PAUL CARMEL, Defendants ---------------------------------------------------------------------X I, Andrew Buonincontri, Esq., an attorney duly admitted to practice law in the State of New York, hereby affirm pursuant to CPLR §2106 that: 1. I am an associate of FRIEDMAN VARTOLO LLP, the attorneys of record for the named Plaintiff, AJX MORTGAGE TRUST II, A DELAWARE TRUST, WILMINGTON SAVINGS FUND SOCIETY, FSB, TRUSTEE (hereinafter “Plaintiff”) in this action and I am fully familiar with all of the proceedings herein. 2. As of the date of this filing, the Mortgage to be foreclosed, infra, is being serviced by Gregory Funding, LLC, (866) 712-5698. This information is being provided in compliance with CPLR 1351, as amended, and the Borrower will be notified of any future servicer change in a separate notice pursuant to part 202 Uniform Civil Rules 202.12-a(b)(1). 3. This action has been brought to foreclose a Mortgage executed by Robert M. Cimmino and Cathy Cimmino (hereinafter “Mortgagor(s)”) to Wall Street Mortgage Bankers, LTD on October 20, 2006 on real property known as 84 Wolcott Avenue, Staten Island, NY Firm File No. 181070-1 1 of 7 FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022 10312 (hereinafter “Mortgaged Premises”), made in the original amount of $245,000.00, recorded in the Richmond County Clerk’s Office on November 9, 2006 in Land Document 161146. A true and correct copy of the Mortgage is attached hereto as Exhibit A. 4. On March 24, 2009, Cathy and Robert Cimmino and America’s Servicing Company amended and supplemented the Mortgage by execution of a loan modification agreement, which capitalized all arrears to form a total unpaid principal balance of $255,092.32 (hereinafter “First Loan Modification Agreement”). The First Loan Modification Agreement amended the interest rate of the Mortgage such that interest would accrue at 5.000% per annum from June 1, 2009 until the modified maturity date, November 1, 2036. A true and correct copy of the aforementioned First Loan Modification Agreement is attached as Exhibit B. 5. On January 21, 2011, Robert M. Cimmino and Cathy Cimmino and Wells Fargo Bank, N.A., D/B/A America’s Servicing Company amended and supplemented the Mortgage by execution of a loan modification agreement, which capitalized all arrears to form a total unpaid principal balance of $273,902.80 (hereinafter “Second Loan Modification Agreement”). The Second Loan Modification Agreement amended the interest rate of the Mortgage such that interest would accrue at 4.000% per annum from April 1, 2011 until the modified maturity date, March 1, 2051. A true and correct copy of the aforementioned Second Loan Modification Agreement is attached as Exhibit C. 6. On September 17, 2012, Cathy Cimmino and Robert Cimmino and Specialized Loan Servicing LLC amended and supplemented the Mortgage by execution of a loan modification agreement, which capitalized all arrears to form a total unpaid principal balance of $283,826.42 (hereinafter “Third Loan Modification Agreement”). The Third Loan Modification Agreement amended the interest rate of the Mortgage such that interest would accrue at 4.500% Firm File No. 181070-1 2 of 7 FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022 per annum from October 1, 2012 until the modified maturity date, March 1, 2051. A true and correct copy of the aforementioned Third Loan Modification Agreement is attached as Exhibit D. 7. On August 21, 2013, Cathy Cimmino and Robert Cimmino and Specialized Loan Servicing LLC amended and supplemented the Mortgage by execution of a loan modification agreement, which capitalized all arrears to form a total unpaid principal balance of $300,433.70 (hereinafter “Fourth Loan Modification Agreement”). The Fourth Loan Modification Agreement amended the interest rate of the Mortgage such that interest would accrue at 4.000% per annum from September 1, 2013 until the modified maturity date, March 1, 2051. A true and correct copy of the aforementioned Fourth Loan Modification Agreement is attached as Exhibit E. 8. Thereafter, the Mortgage was assigned as provided for below: ASSIGNMENT OF MORTGAGE: Assignor: Wall Street Mortgage Bankers, LTD Assignee: New Century Mortgage Corporation Dated: April 21, 2014 Recorded: June 12, 2014 Land Doc: 525397 ASSIGNMENT OF MORTGAGE: Assignor: New Century Mortgage Corporation Assignee: FV-I, Inc. in Trust for Morgan Stanley Mortgage Capital Holdings, LLC Dated: April 21, 2014 Recorded: June 12, 2014 Land Doc: 525398 ASSIGNMENT OF MORTGAGE: Assignor: FV-I, Inc., in Trust for Morgan Stanley Mortgage Capital Holdings, LLC Assignee: Wells Fargo Bank, N.A. D/B/A America`s Servicing Company Dated: November 23, 2015 Recorded: January 21, 2016 Land Doc: 591671 ASSIGNMENT OF MORTGAGE: Assignor: Wells Fargo Bank, N.A. D/B/A America`s Servicing Company Firm File No. 181070-1 3 of 7 FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022 Assignee: FV-I, Inc., in Trust for Morgan Stanley Mortgage Capital Holdings, LLC Dated: December 16, 2015 Recorded: February 26, 2016 Land Doc: 595224 True and correct copies of the aforementioned assignments of Mortgage are attached hereto as Exhibit F. 9. On August 21, 2013, Cathy Cimmino and Robert Cimmino and Specialized Loan Servicing LLC amended and supplemented the Mortgage by execution of a loan modification agreement, which capitalized all arrears to form a total unpaid principal balance of $334,690.01 (hereinafter “Fifth Loan Modification Agreement”). The Fifth Loan Modification Agreement amended the interest rate of the Mortgage such that interest would accrue at 4.500% per annum from May 1, 2017 until the modified maturity date, April 1, 2057. A true and correct copy of the aforementioned Fifth Loan Modification Agreement is attached as Exhibit G. 10. Thereafter, the Mortgage was assigned as provided for below: ASSIGNMENT OF MORTGAGE: Assignor: FV-I, Inc., in Trust for Morgan Stanley Mortgage Capital Holdings, LLC Assignee: AJX Mortgage Trust II, a Delaware Trust, Wilmington Savings Fund Society, FSB, Trustee Dated: November 13, 2017 Recorded: March 6, 2018 Land Doc: 690652 A True and correct copy of the aforementioned assignment of Mortgage is attached hereto as Exhibit H. 11. An Order has been made and entered with the Richmond County Clerk's office on March 31, 2022, referring the matter to Graig C. Martin, Esq. as Referee, to ascertain and compute the amount due on the Note and the Mortgage which are the subject of this action, which order provides that upon filing the Referee’s Report, Plaintiff may have Judgment for the Firm File No. 181070-1 4 of 7 FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022 relief demanded in the Complaint. A copy of the Notice of Entry for the Order is attached hereto as Exhibit I. 12. The Referee’s Oath and Report dated August 1, 2022 and filed in the Richmond County Clerk's Office on August 3, 2022 shows the amount of principal, interest and other charges accruing under the Note and Mortgage then due Plaintiff to be the sum of $403,986.71 as of June 15, 2022, plus a per diem interest for every day thereafter. A copy of the Referee's Oath and Report is attached hereto as Exhibit J. 13. Department of Manpower Data Center searches were conducted to determine the current military status of the Borrowers, Cathy Cimmino and Robert Cimmino in support of the pending application for Judgment of Foreclosure and Sale. The information generated from the searches indicated that the aforementioned Borrowers are not in active duty in the military service of either the United States or an ally. The Department of Manpower Data Center search of Cathy Cimmino and Robert Cimmino were conducted on September 13, 2022. However, no search could be conducted for those defendants named as subordinate lienholder or as John Doe because Plaintiff lacked the necessary information to conduct such search and they are not otherwise entitled to the protection offered by the federal and state Soldier’s and Sailors Civil Relief Acts for the purpose of this foreclosure action. Copies of said searches are attached hereto as Exhibit K. 14. Pursuant to L. 2013, c. 305, a Certificate of Merit was filed and served, together with copies of relevant financial documents, with the summons and complaint and notice of pendency. A copy of the Certificate of Merit is attached here to as Exhibit L. 15. A successive Notice of Pendency was filed on May 26, 2021. A copy of the Successive Notice of Pendency is annexed hereto as Exhibit M. Firm File No. 181070-1 5 of 7 FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022 16. All the Defendant(s) are of suitable age and are of sound mind, and are not incompetents or absentees, nor are they in the military. 17. All Defendant(s) have been duly served with the summons and complaint in this action as shown by the affidavits of service on file in this action or have appeared through counsel. Copies of the aforementioned affidavits of service, or appearances by counsel, if applicable, are attached hereto as Exhibit N. 18. All of the Defendants who require notice of this Application have been served. 19. All of the proceedings herein have been regular and in conformity with the rules and practice of this Court. 20. No previous application has been made for the relief sought in the Judgment of Foreclosure and sale submitted herewith. WHEREFORE, it is prayed that the Judgment of Foreclosure and Sale submitted herewith be signed, the Referee's Oath and Report be confirmed, and the Plaintiff be granted the relief sought in the Complaint, including an additional allowance pursuant to Section 8303 of the Civil Practice Law and Rules, if applicable, and for any further relief this Court may deem just and proper. Dated: September 13, 2022 New York, New York /s/ Andrew Buonincontri Andrew Buonincontri, Esq. FRIEDMAN VARTOLO LLP Attorneys for Plaintiff 1325 Franklin Avenue, Suite 160 Garden City, New York 11530 T: (212) 471-5100 Firm File No. 181070-1 6 of 7 FILED: RICHMOND COUNTY CLERK 09/14/2022 08:44 AM INDEX NO. 135504/2018 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 09/14/2022 WORD COUNT CERTIFICATION Andrew Buonincontri, Esq., an attorney admitted to practice in the courts of New York State, hereby affirms under penalty of perjury that: I am an associate of the firm of FRIEDMAN VARTOLO LLP the attorneys of record for the Plaintiff in the within action. This computer generated ATTORNEY AFFIRMATION was prepared using a proportionally spaced typeface. The total number of words, inclusive of caption, point headings and footnotes, if any, and exclusive of exhibit, word count certification, or any authorized addendum is 1593. Dated: September 13, 2022 New York, New York /s/ Andrew Buonincontri Andrew Buonincontri, Esq. FRIEDMAN VARTOLO LLP Attorneys for Plaintiff 1325 Franklin Avenue, Suite 160 Garden City, New York 11530 T: (212) 471-5100 Firm File No. 181070-1 7 of 7